Billings v. Wyoming State Board of Outfitters & Professional Guides

CARDINE, Justice,

specially concurring.

I cannot agree with the court’s holding that Wyoming outfitters who provide guide and outfitting services are not subject to the penalties of W.S. 23-3-303(a), which makes unlawful allowing the waste of a game animal. Nevertheless, I concur in the reversal of the Board’s decision.

Wyoming statute 23-3-303(a) pertaining to allowing animals to go to waste provides as follows:

No person shall take and leave, abandon or allow any game bird, game fish, or game animal except trophy game animal, or edible portion, to intentionally or needlessly go to waste.

The majority of this court reverses the decision of the Wyoming State Board of Outfitters and Professional Guides by holding that only the hunter who shoots big game can violate W.S. 23-3-303(a) because the hunter who shoots and kills the game is the “person” (and only person) who “takes” and leaves game “intentionally” or “needlessly” to “go to waste.”

Wyoming statute 23-l-102(a)(vii) and (viii) provide, under general definitions, that

(vii) “Take” means hunt, pursue, catch, capture, shoot, fish, seine, trap, kill, or *89possess, or attempt to hunt, pursue, catch, capture, shoot, fish, seine, trap, kill, or possess;
(viii) “Person” means an individual, partnership, corporation, company, any other type of association, and any agent or officer of any partnership, corporation, company, or other type of association[.] [emphasis added]

The court in its majority opinion concludes that the term “other type of association” found in the above statute, because of the rule of ejusdem generis, must be an individual, partnership, corporation, or company. I disagree. Ejusdem generis as defined in Black’s Law Dictionary (6th ed. 1990)is as follows:

Of the same kind, class, or nature. In the construction of laws, wills, and other instruments, the “ejusdem generis rule” is, that where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. U.S. v. LaBrecque, D.C. N.J., 419 F.Supp. 430, 432. The rule, however, does not necessarily require that the general provision be limited in its scope to the identical things specifically named. Nor does it apply when the context manifests a contrary intention.

The rule requires that general words following words of a particular or specific meaning include persons or things of the same general kind or class as those specifically mentioned. The words specifically mentioned in defining “person” in W.S. 23-l-102(a)(viii) are business entities. Thus, it is patently clear that the words “other type of association” were intended by the legislature to include any other business-type association or arrangement under which game animals are taken.

We must invoke the rule that this court looks only to the intent of the legislature when enforcing or construing statutes. Allied-Signal, Inc. v. State Bd. of Equalization, 813 P.2d 214, 219 (Wyo.1991); Billis v. State, 800 P.2d 401 (Wyo.1990); Rocky Mountain Oil and Gas Ass’n v. State Bd. of Equalization, 749 P.2d 221 (Wyo.1987). Legislative intent must be ascertained initially and primarily from the words used in the statute. Allied-Signal, 813 P.2d at 219; Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991). The statutory language itself provides valuable insight into legislative intent. Pisano v. Shillinger, 835 P.2d 1136 (Wyo.1992) (No. 91-138, published July 27, 1992). We normally accord some weight to the construction of a statute by an administrative agency unless the agency’s construction is clearly erroneous. State ex. rel. Worker’s Comp. Div. v. Mahoney, 798 P.2d 836, 838 (Wyo.1990). In interpreting a statute, every word, clause and sentence must be considered so that no part will be rendered inoperative or superfluous. Id.; Story v. State, 755 P.2d 228, 231 (Wyo.1988). Each element must be given meaning. If the language selected by the legislature is sufficiently definitive, that language establishes the rule of law. Any additional construction can be resorted to only if the wording is ambiguous or unclear to the point of demonstrating obscurity with respect to the legislative purpose or mandate. Mahoney, 798 P.2d at 219; Blue Cross Ass’n v. Harris, 664 F.2d 806, 809 (10th Cir.1981).

I would hold that the language used in W.S. 23-3-303(a) and W.S. 23-l-102(a)(viii) is clear and unambiguous and that the obvious legislative intent was that “other type of association” would be any other monetary business arrangement or relationship between persons and, when applied to W.S. 23-3-303(a), includes as a person the business association of an outfitter with a client for a fee to provide the agreed contractual service for a big game hunt.

That the legislature intended that outfitters and guides who occupy a business relationship with a hunter would be subject to statutes prohibiting the intentional or needless waste of big game animals cannot be seriously disputed. The hunter who signs on with an outfitter for a big game hunt does so because he lacks equipment, supplies, horses, pack animals, camp site, *90knowledge of forest, wilderness and hunting areas, vehicles and other equipment, and because it would be unlawful for him as a nonresident to undertake such a hunt. The outfitter furnishes all that is needed for the hunt, including horses and pack animals. It is only the outfitter who will pack out the game taken. The hunter cannot, will not, and is not expected to pack out the game to prevent waste where he has entered into the business-type relationship as here for the hunt.

In this case, the hunter paid a fee of $3,000 for the hunt; and the outfitter, according to his written brochure and agreement, represented and agreed as follows:

“Each camp is equipped with a large cook and dining tent where wholesome, hot meals are prepared by our cook. The menu is carefully planned to provide nutritious and satisfying food. The hunters’ tents have bunks, foam pads, heating stoves and lanterns. There is also a guide’s tent, grain and gear tent, corrals and hiking trails.” * * *
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* * * “The outfit is geared to handle up to four hunters per trip with two hunters per guide. We prefer small parties in order to provide more personal attention and quality hunting. However, if you have a party of five or six hunters and like to hunt together, we can easily accommodate you. Our horses and mules are kept in good condition and are ridden throughout the summer, ensuring you of a well cared for, gentle, and mountain-wise animal. All gear, tents, and equipment are well maintained and replaced when necessary.
“After pulling out of the Thorofare country in early November, we hunt deer in the North Fork and South Fork Drain-ages of the Shoshone River. These areas are noted for producing trophy mule deer. We hunt the area daily and return to Cody each night.”
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“[We provide] Transportation to and from Cody airport, if necessary; transportation to and from trailhead; riding and pack animals; one guide per two hunters; meals; cook; field dressing of game; antler, cape and hide preparation as you specify; delivery of meat to Cody processor if you wish.” [emphasis added]

The outfitter who enters into a business relationship with his client hunter to take game animals has entered into the business-type association defined in the statute and, therefore, is a “person” who under W.S. 23-3-303(a) violates Wyoming law when he takes and leaves a game animal to needlessly go to waste. As such, he is subject to perform the requirements and to the penalties imposed by W.S. 23-3-303(a).

Nevertheless, I concur in the reversal of the Board’s decision. It is not supported by substantial evidence and therefore is arbitrary, capricious or an abuse of discretion under W.S. 16-3-114(c)(ii)(A). The extensive record of this hearing tells us that an unusual set of occurrences and circumstances led to the unfortunate spoilage of this game meat. This hunt had hardly begun when three of the outfitter’s employees unexpectedly quit his employment. The group packed back 32 miles to its base camps to begin the hunt. The weather was unseasonably warm, being in the 80 to 90 degree temperatures. There was compliance with the statute requiring that big game be packed to the camp within 48 hours. The attempt thereafter to pack the game to Cody, Wyoming encountered an unexpected heavy snow storm resulting in a day and a half being consumed in that effort. There was evidence that the game would have spoiled in any event because of the circumstances encountered. Contrary evidence was totally lacking. The Board could reach the conclusion and make the finding that it did — that the outfitter was in violation — only by its conclusion that he should have made “special” provision for packing out game animals. Failure to take special precautions that would have been necessary in these extreme unexpected circumstances was practically impossible and can hardly rise to the level of violation of W.S. 23-3-303(a). The outfitter was acquitted of the criminal charge of violating this statute. I recognize that an alterna*91tive disposition in this case might be a remand to the Board to make additional findings. I would not oppose that resolution of the case. However, I am prepared at this time to concur in reversal of the Board’s decision and do concur.